Wednesday, January 20, 2010

Judge on Sharon Keller: Public humiliation is punishment enough

An embattled Texas judge who closed her court before a death-row inmate could file his final appeal should not lose her job or receive any further punishment beyond the "public humiliation" she has faced, a judge presiding over her ethics trial said in a report released Wednesday.

Judge Sharon Keller still faces five judicial misconduct charges for refusing to keep her court open past 5 p.m., and the state commission that will ultimately decide Keller's fate is not bound by the recommendations in Wednesday's report.

But the report makes it clear that Keller is not to blame for a twice-convicted killer being executed Sept. 25, 2007.

"Although Judge Keller's conduct on that day was not exemplary, she did not engage in conduct so egregious that she should be removed from office," wrote state district Judge David Berchelmann, who oversaw Keller's ethics trial.

Berchelmann went on to recommend that Keller was also undeserving of "further reprimand beyond the public humiliation she has surely suffered."

Interesting to note that "public humiliation" is a substitute for an official reprimand when a judge engages in behavior that's "not exemplary of a public servant" and considered "highly questionable."

Here's a link to the full findings of fact (pdf) from the special master. Judge Berchelmann's recommendation will now go to the full Commission on Judicial Conduct who will decide whether to dismiss charges, reprimand Keller, or recommend her removal from office.

I think it's kind of hypocritical in this instance how Grits, so ever eager to champion the cause of the "unjustly accused;" remains so unyielding in his continued criticism of Keller. C'mon Grits! Right is right; and wrong is wrong! All Keller did was evidently communicate to some court clerk that the clerk's office closed at 5:00. Well, duh! You'd think a law professor like Dow, and his cohorts at the Defender Service, would know how to read a phone directory or call information to get the numbers for the individual justices at the Court of Criminal Appeals. It's pretty obvious that the Defender Service was playing "chicken" with the court and Keller in this instance; all in the hope of stirring up some adverse publicity for the chief judge. I guess that would be okay except in this instance the stakes were the life of their own client. If anyone should be thinking about filing a grievance against Dow and Co., it should be the family of his dead client!

How ironic that all of these law professors and anti-death penalty advocates were jumping on the media bandwagon and publically crying for Kellers' scalp! Now look at the egg on their faces!!! You're in this group too, Grits! Shame on you! Why don't you man up and admit you were wrong in this instance an publically apologize to the judge for your rush to judgment!!!!

2:37: I'm "unyielding" because I've closely watched the case and formed my own opinions. Like Judge Berchelmann, I find Keller's actions "highly questionable" - from usurping her colleague's authority to rule on the case to her false claims of poverty when the Commission charged her. The judge thinks "public humiliation" was enough punishment for that behavior; that's a judgment call, but look at it this way: Just because a DWI defendant, for example, is humiliated when their name is printed in the paper, that doesn't mean the state doesn't go ahead and prosecute him.

This news just came in and I haven't even read the full findings yet. Why don't you wait and condemn my response until I actually have a chance to form an opinion about what the judge has said. Beyond that, we'll see what the commission says.

2:45: Why should I do that, exactly? By all means, go ahead if you think he deserves it.

Grits, your comments at 3:10 shed new light on your banner motto "you can beat the rap but you won't beat the ride." How in the world you can reconcile your advocacy for the "wrongly convicted" with your all-too-evident zeal to jump on the anti-Keller bandwagon is completely inexplicable.

You should be the first person to publically decry the injustice that was heaped upon Keller by Dow and the anti-death penalty establishment. Instead, it's patently obvious that you're more than willing to employ a double standard when the end (getting a conservative, democratically elected jurist out of office) justifies the means.

I know you make no pretense of being an "objective" journalist. Nonetheless, one would think that in order to maintain some credibility on all of your other advocacy issues, it would be important to you to maintain at least a "smidgen" of objectivity. Apparently not.

Enjoy all of that "crow" you're going to be eating on this issue. Hope it tastes really good!

Was there ever any doubt that she would be disciplined? Prosecutors and Judges always protect their own. Defense attorneys are sanctioned, and disbarred but not Judges or Prosecutors. After all, the defendant in this case was scum. Who cares?

The only prosecutors that are sanctioned are the ones who have had criminal cases filed, tried and been found guilty. Judges can have sex with the Prosecutor in a death penalty case but that is not really a problem. I have known judges who have had sex with probationers in their court but have not been removed.

How convenient to blame the bad defense attorneys. We can only hope that she is ultimately held accountable by informed voters in this State. Of course that is naive beyond belief, but some of us still believe in unicorns.

Funny how Judge Keller's defenders here are all anonymous. I'm guessing that's because no credible person would sign their name onto these absurd statements that she did nothing wrong. That's certainly not what the Judge said in the findings. I've only just now had a chance to skim the opinion, and probably won't have a chance to elaborate further what's in it until tomorrow. (Clearly the folks commenting here so far have no clue.) But here's an excerpt that shows this opinion does not in the least exculpate Keller of responsibility or justify her actions. The opinion in fact is quite critical of her:

"Judge Keller's conduct, however, was not exemplary of a public servant. ... Although she says that if she could do it all over again she would not change any of her actions, this cannot be true. Any reasonable person, having gone through this ordeal, surely would realize that open communication, particularly during the hectic few hours before an execution, would benefit the interests of justice. Further, her judgment in not keeping the clerk's office open past 5:00 to allot the TDS to file was highly questionable. In sum, there is a valid reason why many in the legal community are not proud of Judge Keller's actions."

The judge differentiates between an "oral tradition" and an "unwritten rule," saying Keller violated no "written or unwritten rule." But he elsewhere refers to the "oral tradition" interchangeably as a "rule," and notes that the court codified that "oral tradition" in its written rules after the incident, which sounds to me like she really did violate an "unwritten rule" and the judge just wanted to give Keller a pass because the "public humiliation" she endured is punishment enough. IMO that's a questionable interpretation given the other findings of fact in the document.

"You should be the first person to publically decry the injustice that was heaped upon Keller by Dow and the anti-death penalty establishment."

Uhhm. I hope it's "patently obvious" that being imprisoned or executed as a result of false accusations is completely different than being officially reprimanded, impeached, or removed based on false accusations.

Also, it seems like everyone more or less agrees about the facts. The question is whether those facts indicate a violation of a law or ethical duty. So I'm not sure how there's a "double standard."

I generally lean toward the conservative side of things myself, and i believe in the death penalty, but Sharon Keller is an embarassment to this state and a disgrace to the judiciary. There is more to it than just this case, and I frequently wonder why her other indiscretions and unsound reasoning were not made part of these hearings. Please, do not try to lump all "conservative, democratically elected" jurists into the same pot. We have some fine judges and justices in this state that are conservative, ethical, and take pride in their work. Sharon Keller is not like them just because she labels herself "conservative."

I didn't see much media exageration, I saw points of contention that the findings, which I have read, support. I saw a CCA judge claim she needed a court appointed attorney, a specific one and expensive one, though she has a substantial estate to rely on. You can support her, for whatever reason, but try to be honest and realistic. This is a woman who looks at laws that have been REWRITTEN by the leg and decides that the boys in Austin didn't really mean to change the law and hurt the prosecutor. Give me a break.

As for the defense lawyers, they made mistakes. Big ones. Those mistakes have earned them public humiliation and embarassment. The way they are looked upon at this point will probably impact their future earning potential and career paths. If that's good enough for Keller, why is it not good enough for them?

And here's a question. Not that this compares in any way to sending innocent people to prison or hiding evidence to have people killed or imprisoned, but why is it ok for prosecutors and victims to make false allegations and face no consequences even when they intentionally lie, but for Dow to file a complaint and have it heard by a court when he believes something wrong has happened is a crime? I'd like Anonymous 5:16 to answer that, and explain to me why jury trials solve all and are great when victims and DA's lie, but when a defense attorney makes a claim he believes is legitimate that leads to a court case, he should be sent to prison, hung in the town square, and burn in hell.

"Paul Burka predicts that the Presiding Judge of the Texas Court of Criminal Appeals, is "Gone Baby, Gone." After analyzing the details of charges against here, he writes:

"Stick a fork in her: She’s done. There is no way Keller can survive this."

Anon said as follows, in the comments: "My impression (based solely upon the public personna of Judge Keller as stated in the media, including this blog) is that Her Honor is one of those Republican babies, spoiled rotten to the core, inculcated with and in the grasp of an unrealistic belief in being entitled to high office and the perks that go with it. She doesn't understand boundaries, has no inkling of her human ability to make terrible mistakes, and therefore does not recognize when she makes one and refuses to admit it. She will not show remorse or even some form of apology to the people of Texas for her actions.

The reason Keller's supporters post anonymously here Grits should be obvious. They don't want to become the subject of the lies and distortions perpetrated by Dow and his liberal anti-death penalty cronies like Keller was.

It has become relatively commonplace in capital litigation for the rabid death penalty abolitionists to believe that the end justifies any means. "Death is different," they claim. And this philosophy influences everything they do. The truth is no longer important when the goal is keeping someone alive. The law, rules of ethics, and the facts may all be circumvented and distorted when it's about saving someone from the "ultimate punishment." Hence, all of the attacks on judges, prosecutors, witnesses (see, e.g, Cameron Willingham's wife), etc. Bogus claims of mental retardation, child abuse, and other "mitigating evidence" have become the norm in death penalty litigation--all under the guise of "zealous advocacy." It's almost as if the anti-death penalty bunch view themselves as decendents of the "freedom riders" from the civil rights era.

Admittedly, Keller is a conservative judge. The vast majority of the public in Texas approves of that approach--whether you like it or not, Grits. She doesn't believe that jury verdicts should be lightly overturned--and most people in Texas approve of that approach too! For these reasons, she became an easy target for folks like Grits, criminal defense lawyers and the anti-death penalty fringe. Call her a bitch, call her uncompassionate, call her dictatorial, or even worse. However, the bottom line in this case is that she did nothing legally or ethically wrong. It was not her job to educate Dow and the TDS on how to file pleadings with the court. Frankly, I'm not sure that Dow and his buddies even wanted her advice. Instead, they saw an opportunity to take a shot at Keller, and they took it.

Remember how when this story first broke, the media portrayed this as "Keller barring the courthouse door and preventing Richard from filing his writ and allowing him to go to the gurney?" Well now we know that nothing could have been further from the truth!!! What a bogus claim! And yet Grits implies that she, in some respect, was not justified in wanting the State to pay for her defense from this ridiculous claim. Give me a break! Her sole transgression was saying the clerk's office closes at 5:00. Something the law evidently requires!

Those of you who fail to see how unfairly Keller was treated in the media--and on this forum--are either too biased or too obtuse to know the truth when you see it. Stop drinking the "kool aid" people! Prosecutors and judges who are simply enforcing the law enacted by the Legislature, are not the enemy. They are just doing the jobs that the people elected them to do. There really are criminals in this state who do really bad things and deserve to be executed---whether the liberal left is willing to admit it or not!!!

Funny how Judge Keller's defenders here are all anonymous. I'm guessing that's because no credible person would sign their name onto these absurd statements that she did nothing wrong.---------------------------------Of course they are anonymous Grits, they are COWARDS!

I am wholly unsurprised that a Republican judge would find Keller should remain on the CCA bench. What is more surprising is that he made this finding despite writing the following about her conduct:

1. Judge Keller's "conduct on that day was not exemplary"2. Judge Keller refused to allow a late filing in a death penalty case on the eve of an execution, even if it was a minute past closing time3. Judge Keller violated the Court's tradition by not referring Richard's counsel to the Judge who was assigned to handle his case, rather than addressing the issue herself and exercised "poor judgment" in connection with that decision4. Judge Keller "did not exhibit a model of open communication"5. Judge Keller "should have been more forthcoming"6. Judge Keller "should have spoken up the next morning" in a meeting with the other judges, who were expressing surprise that Richard had not filed anything, and that her "silence at this meeting goes contrary to the ideals of judicial collegiality" 7. Judge Keller's "conduct was not exemplary of a public servant." 8. Judge Keller's decision not to keep the clerk's office open was "highly questionable"

Most significantly, despite all of these things, the Republican Master noted Judge Keller testified that she would do everything just the same if the situation arose again, and he wrote in his opinion that unlike Judge Keller, "any reasonable person" knowing what Judge Keller knows now would have to handle the situation differently, and that "there is a valid reason why many in the legal community are not proud of Judge Keller's actions."

Given all this, however, he found not only that she should not be removed on the bench, but that she did not deserve a reprimand or punishment of any kind. What assurance is there, then, that she or other judges, looking at this example, will live up to the standard of conduct even the Republican Master admits is and should be expected of our courts?

Stop kicking Scott--he isn't the one who refused to leave the courthouse open for a single moment past closing time.

I would also add that I think the portion of the opinion addressing the TDS culpability ignores practical realities of a legal practice and goes too far in assigning blame to TDS. Among other things, the Republican Master criticizes the drafting assignment being made to a more junior lawyer--since when is that wrongful conduct? The Republican Magistrate also criticizes TDS for having a paralegal with a good relationship with the CCA clerk call about the filing, rather than having one of the lawyers call. However, he does not explain how that would have changed the outcome--and indeed, how would it have changed the outcome? The lawyers were trying to finish the filing and made the judgment call that a paralegal with a good relationship with the Court was the best one to place the call; this freed them up to work on finishing the pleadings. Had they made a different call, I expect the Master would have criticized them for not having the pleadings ready any sooner.

While he lays the blame at the feet of TDS, the fact is that a guy wouldn't be dead right now if Keller had exercised her vast discretion to say, "Let them file. I would rather err on the side of allowing an argument to be heard."

Interestingly, I worked on a death penalty appeal 10 years ago to which the State of Texas HAS YET TO FILE A RESPONSE. Ten years ago. So the next person who complains about defendants dragging out the process can turn their finger around and point it at the State of Texas.

I actually am someone who makes findings of fact. When I do so, I don't bury them in text that is following a red herring, like this judge did. It really doesn't matter what the TDS did or why the filing was going to be late...the only relevant question here is what did Keller do when asked a question about keeping the court open. My job also includes taking calls on the phones with questions - I often have to ask a lot of questions myself to find out what information the person really needs...Keller should have done that here.

What I find most surprising is that there was mention of TDS not starting there appeal for two hours after the Supreme Court opinion but no mention of why the CCA or Governor did not immediately issue a stay of execution when the SC announcement came down. Even a casual observer with some semblance of intelligence should have expected the SC decision would impact executions in all states with the lethal injection combo that Kentucky had (which Texas was one). Certainly the presiding judge of the CCA knew that and should have anticipated that is what they were calling about.

This is all just really sad. In reality, the defendant would have been executed by now. But, at the time of his execution, no one knew that. What if the SC had ruled differently? No one seems to consider that as one reason why the CCA or Governor Perry didn't do more to act unilaterally once the decision by the SC to take the case came down.

While he lays the blame at the feet of TDS, the fact is that a guy wouldn't be dead right now if Keller had exercised her vast discretion to say, "Let them file. I would rather err on the side of allowing an argument to be heard."

What planet are you from? Of course he would be dead right now. After 21 years he exhausted all his appeals. If he had been granted a stay, it would have been lifted after 8 months and he would have been exectued.

Interestingly, I worked on a death penalty appeal 10 years ago to which the State of Texas HAS YET TO FILE A RESPONSE. Ten years ago.

"Most significantly, despite all of these things, the Republican Master noted Judge Keller testified that she would do everything just the same if the situation arose again, and he wrote in his opinion that unlike Judge Keller, "any reasonable person" knowing what Judge Keller knows now would have to handle the situation differently, and that "there is a valid reason why many in the legal community are not proud of Judge Keller's actions.""

How does the above support the proposition that "humiliation is punishment enough?" Did the guy who wrote the opinion fail Logic?

Texas has many things to be proud of--including Scott Henson. This Judges behavior in this case more than many others was not one of those things. The comments here are as shameful as the results today.

David Dow was pretty mouthy early on. Why is he no longer spouting ridiculous exaggerations? Because he knows he could get dinged. Heck, he still may get dinged. Perhaps he will start thinking before saying ridiculous liberalness.

To those of you who don't like the alleged actions of this judge, organize like us so called "radical, unpatriotic teabaggers" and don't vote for her next time and fire a shot like the one in Massachusetts Tuesday night.

Spectators of death penalty jurisprudence might be interested to read the American Law Institute's reasons for withdrawing Section 210.6 of the Model Penal Code "in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment."

To 7:21, I don't think you've heard any of that "unpatriotic" stuff on this blog. However, your suggestion about an electoral shock reminds me that Judge Keller is up for reelection in 2012, and also inspired me to put up a poll in the sidebar.

These are good, helpful comments, folks. Especially good list at 7:26 above. Thanks to all. To those who were hypercritical, let me know what you think of my actual opinions on this subject as opposed to the caricatures and strawmen you made up.

Actually, Silence, unlike you, Charles gives his full name here all the time and I'm certain would have responded to you with it when he saw your comment. I just beat him to it. Will you do the same?

If not, you are a hypocrite and a coward. You're the one claiming he conceals his identity when he does not. And yet, you're just another two-bit whiner hiding behind anonymity like your mother's skirt to insult other without being held accountable. Rev. Kiker, who btw I'd guess is an octogenarian by now, has more integrity in his little finger than all the anonymous cowards and blowhards who've ever left a comment here. He's proved himself in the field fighting for justice, and he wasn't afraid to do so under his own name, even when it cost him. I'll bet no one will ever say that about you.

The bottom line is that Mr. Kiker did not use his legal name while criticizing others for posting anonymously. That is what makes him a hypocrite, plain and simple.

And actually, I have posted here in the past to disclose relevant information about a criminal justice-related investigation that you blogged on, and if I had posted my name, I would have been fired immediately. I don't think it makes me a coward to want to keep my job so that I can feed my family. Several of those I work with read this, and posting my real name on any post would get me called into the office.

I've also been noticing that you only insult ("coward", no "cajones", "hiding behind mother's skirt" etc.) anonymous posters when you disagree with them. This is surprising, based on what I assumed your concepts of liberty were.

"Anonymity is a shield from the tyranny of the majority." Justice Stevens, McIntyre v. Ohio Election Commission

Sharon Keller humiliated? Hardly. She and her cronies can sit around the bar and chide the libs for trying to bring her down and brag about how law and order Texas lacks the will to do ANYTHING that remotely appears to be weak on crime. This state is a JOKE!

No surprise that judges stick together. They depend on each other to appoint poorly paid or incompetent defense attorneys for indigent defendants, attorneys judges then deny their witnesses/testimony in murder trials. Judge Berchelmann repeated verbatim the words of Keller's attorney - that David Dow should have started earlier to prepare a habeas appeal based on a SCOTUS decision handed down that very morning for a client who was very clearly mentally retarded and ineligible for the death penalty, a client who was given extra IQ points by a so-called prosecution "expert" for having committed a murder in the first place. Indeed, Dow should have doubted Judge Keller's truthfulness (or sanity) by coming to the CCA any way and banging on doors in a seemingly futile attempt to file Richard's appeal. Keller previously denied an appeal for Roy Criner (whose DNA did not match) and who was later exonerated, announcing that "he might have worn a condom". She also denied a new trial for Calvin Burdine, whose lawyer slept through much of his trial, saying: "he might not have slept through the important parts". This "might've, should've, could've judge "should've" been impeached long ago. Anonymous - 1/20/02:20 should read "The Autobiography of an Execution" by David Dow. I doubt then that he would dare to imply that this attorney does not move heaven and earth for his clients - clients who, even though facing the inevitable, at least know that one person cares whether he lives or dies.

Grits, you contributed to the exaggeration within the media. Take some responsibility for your poor decision. You should be the first person to publicly decry the injustice that was heaped upon Keller by Dow and the anti-death penalty establishment.

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